Friday, October 7, 2011

On Ignoring Laws to Schedule Primaries and Caucuses

Aaron Blake and Chris Cillizza attempt to bust the myth of the impact the rules/laws in Iowa and New Hampshire actually have on their ability to schedule their primaries or caucuses. Their bottom line is, hey, both Iowa and New Hampshire can and have in the past fudged the rules, so breaking the barrier into December is not likely as a result.

FHQ disagrees.

Past actions give the appearance that Iowa and New Hampshire can bend their own rules/laws, but that is not the case. Blake and Cillizza provide some seemingly good examples of past rules breaking, but it is a shallow dig and fails to capture the context of those cycles. Let's have a look and then I'll explain the true measure of the situation in Iowa and New Hampshire.

Blake and Cillizza write:

Second, the main reason people think things may begin in December is because New Hampshire state law requires its primary to be held seven days before any similar contest, and Iowa law requires its caucuses to be held eight days before the next contest. New Hampshire Secretary of State Bill Gardner has cited this law and said New Hampshire must be at least a week before Nevada.
Well, both of these laws have been ignored before, so who’s to say they won’t again?
In 2008, Iowa held its caucuses just five days before New Hampshire. And in 1996, 2000 and 2004, New Hampshire held its primary less than seven days before another state. Gardner, the longtime secretary of state who has sole control over setting the state’s primary date, was also in charge during those three elections.
(In 1996, even after the state strengthened its first-in-the-nation law in response to a power move by Delaware, Gardner ultimately concluded that Delaware’s primary didn’t constitute a similar election.)
In other words, laws are laws. But there’s often a way to skirt them, and they have often been skirted.

FHQ will take the New Hampshire examples first. In 2004, New Hampshire did have a contest follow less than a week after the primary in the Granite state. But it was the North Carolina Republican caucuses. Not only was that a contest that was held in a party that was re-nominating an incumbent -- George W. Bush -- but not all of the caucuses were held that day. The precinct level events could take place across the Tarheel state throughout the months of February and March. In 2000, a non-binding Delaware Democratic primary -- a beauty contest -- fell on the Saturday after the New Hampshire primary. Additionally, Hawaii Republican caucuses were held the Monday after New Hampshire -- within the seven day window specified in New Hampshire law.

The tie that binds all three of these contests -- and the reason why New Hampshire shrugged their shoulders at the scheduling of them -- is that each was largely inconsequential. The Republican nomination was not contested in 2004, Delaware was non-binding in 2000 and George W. Bush and the other candidates were not going to trek out to Hawaii in 2000 either. In other words, none of these contests was a threat to the attention the New Hampshire law is designed to protect.

Well, you left out one, FHQ. Yes, I did. Delaware in 1996 is another special case, but it differs from the rest. The 1996 Delaware primary -- as was the case four years later -- was scheduled on the Saturday after New Hampshire, wherever New Hampshire ended up on the calendar. [It was tethered to the Granite state in the way that Nevada's Republican caucus is to New Hampshire this year.] I could argue about this being the one exception to the rule and leave it at that, but the truth is, Delaware was not an exception to the rule. Why? Delaware was rendered largely meaningless in the 1996 Republican nomination race because New Hampshire Republicans had the candidates -- or offered to them the opportunity to -- sign a pledge that they would not campaign in Delaware or any other state that violated New Hampshire's law. Among the principles, Bob Dole and Pat Buchanan pledged to uphold the seven day buffer. Lamar Alexander did not, but stayed away from the First state. Steve Forbes did not. Forbes campaigned in and won Delaware. But the press was busy talking about Buchanan's narrow, surprise victory over frontrunner Dole in New Hampshire.

Again, the issue is attention. New Hampshire had assurances of or felt safe in the fact that they would garner the most attention in each of those years. That is why those contests were deemed not "similar". By its nature the term "similar contest" is ambiguous and gives the New Hampshire secretary of state some latitude in the scheduling of the primary.

Why, then, is Nevada considered a similar contest to New Hampshire? The Nevada Republican Party has changed its rules since the 2008 and the precinct caucuses are binding now when they were not in 2008. In addition to that, the Nevada contest is sanctioned by the parties. By being included in the pre-window period, Nevada is being given an attention-grabbing spot. Bill Gardner cannot, then, get the same assurances on Nevada as he and New Hampshire got in the past and because of the party-sanctioned position cannot ask the candidates to choose New Hampshire over Nevada.

Well, what about Iowa? Both Iowa Democrats and Iowa Republicans violated the state law calling for the parties' caucuses to be eight days prior to any other contests. The catch here is that the mechanism is different in Iowa than it is in New Hampshire. I don't want to get too far down in the weeds on this one, but basically the New Hampshire primary is a state-funded contest that the parties there opt into. [They would be foolish not to. Why not save the money?] The Iowa caucuses like any other caucus is not state-funded. The parties pick up the tab and by virtue are not really bound by that state law -- not in the way that parties in New Hampshire are anyway. The Iowa parties can schedule their caucuses for any date they choose and can and do furthermore lean up against that state law when it comes to defending the first-in-the-nation status, but it carries far less legal weight than the New Hampshire law. Now, the parties could opt out of the primary in New Hampshire if it broke with national party rules, but again, they are not going to do that because of the financial considerations. These nomination contests -- whether primary or caucus -- are party business. State law only affects that function insofar as the state parties agree or disagree with the state laws. If they agree with the laws everything is fine. If they disagree the parties typically win out -- at least according to the courts they do. Those disputes rarely come up over primary dates, though. In the event there is a conflict, state parties usually opt out and hold caucuses. [More often than not we see court challenges pitting parties against state law over who can participate in the contests -- opened versus closed primaries.]

FHQ agrees with Blake and Cillizza that we may not see December primaries and/or caucuses, but it won't be because New Hampshire or Iowa -- but mostly New Hampshire -- can fudge the rules. The ads expenses and more importantly, as FHQ has warned, the future implications for first-in-the-nation status are clearer explanations against the notion of December contests. Iowa obviously cares about that. Bill Gardner does not -- at least not to the same level. His main interest is in abiding by the law of the state of New Hampshire.

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